[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 29, 2007
No. 06-16589 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00345-CR-UWC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO ZAVALA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 29, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Arturo Zavala appeals his 262-month sentence for conspiracy to possess
with the intent to distribute more than 500 grams of methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. On appeal, Zavala argues that the
district court plainly erred in sentencing him under a mandatory Sentencing
Guidelines scheme, where the court acknowledged that the sentence was too long.
For the reasons discussed more fully below, we vacate Zavala’s sentence and
remand to the district court for further proceedings.
In January 2003, Zavala pled guilty to the above-mentioned offense. At
sentencing, the district court found that Zavala’s offense level was 39, his criminal
history category was I, and his resulting guideline range was 262 to 327 months’
imprisonment. Thereafter, the court stated to Zavala that “[t]he sentence that I’m
going to have to impose on you, I think, is too long. But I don’t have any
discretion in that matter.” The court then sentenced Zavala to 262 months’
imprisonment.
In November 2003, Zavala timely appealed his conviction and sentence.
However, we dismissed for want of persecution because Zavala failed to timely file
an appellate brief and record excerpts. In July 2005, Zavala filed a motion to
vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. The
magistrate judge recommended granting the § 2255 motion as to Zavala’s claim
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that his counsel was ineffective for failing to pursue his direct appeal. The
magistrate also recommended that Zavala be appointed counsel, resentenced in
accordance with United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000) 1,
and permitted to take an out-of-time appeal. The district court adopted and
affirmed the magistrate’s recommendation.
At resentencing, the court acknowledged that, when it initially sentenced
Zavala, it believed that the sentence was unfair and too high, but that it had no
discretion in the matter at that time. The court further acknowledged that it now
had discretion in sentencing, but because of the procedural posture of Zavala’s
case, in that he was being resentenced under Phillips and was required to received
the same sentence as he received initially, the court stated that it could only
reinstate the previous sentence. The court also indicated that, upon remand from
this Court, it intended “to sentence him to a significantly lesser term . . . than he
1
In Phillips, this Court held that:
When the district courts of this circuit conclude that an out-of-time appeal in a
criminal case is warranted as the remedy in a § 2255 proceeding, they should
effect that remedy in the following way: (1) the criminal judgment from which
the out-of-time appeal is to be permitted should be vacated; (2) the same sentence
should then be reimposed; (3) upon reimposition of that sentence, the defendant
should be advised of all the rights associated with an appeal from any criminal
sentence; and (4) the defendant should also be advised that the time for filing a
notice of appeal from that re-imposed sentence is ten days . . . .
Phillips, 225 F.3d at 1201.
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was initially sentenced.” The court thus sentenced Zavala to 262 months’
imprisonment.
On appeal, Zavala argues, and the government agrees, that the district court
plainly erred in imposing the sentence. Zavala did not raise this claim before the
district court and, thus, we will review only for plain error. United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error review, there
must be (1) an error, (2) that is plain, and (3) affects substantial rights. Id. When
these three factors are met, we may then exercise our discretion and correct the
error if it seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. Id.
Zavala was sentenced under the pre-Booker2 mandatory Guidelines scheme.
Under Booker, “error exists when the district court misapplies the Guidelines by
considering them as binding as opposed to advisory.” United States v. Shelton,
400 F.3d 1325, 1331 (11th Cir. 2005). Here, error existed because the district
court clearly applied the Guideline in a mandatory fashion. The error was plain
because, as we concluded in Shelton, “Booker made plain the district court’s error
in sentencing [a defendant] under a mandatory Guidelines scheme that is now
advisory.” Shelton, 400 F.3d at 1331. Thus, Zavala’s case meets the first two
2
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)
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prongs of plain error review.
Under the third prong, Zavala must demonstrate that the error affected his
substantial rights. “[I]n post-Booker sentencing cases, in applying the third prong,
we ask whether there is a reasonable probability of a different result if the
guidelines had been applied in an advisory instead of binding fashion by the
sentencing judge in this case.” Shelton, 400 F.3d at 1332 (quotation omitted). “A
reasonable probability of a different result means a probability sufficient to
undermine confidence in the outcome.” Id. (quotation omitted). Review of the
record in Zavala’s case indicates that the court would have imposed a lower
sentence had it not felt bound by the Guidelines. First, the court expressed an
opinion that it believed the sentence was “too long.” Moreover, the court
ultimately sentenced Zavala to the lowest sentence allowable under his Guideline
range. Additionally, at resentencing, the court again acknowledged that it believed
the sentence was “unfair” and that, upon remand from this Court, it intended to
sentence him to a lesser sentence than was initially imposed. Therefore, Zavala
established that the error affected his substantial rights because, had he been
sentenced under an advisory Guidelines scheme, there is a reasonable probability
that he would have received a lesser sentence.
Finally, Zavala also has met the fourth prong of plain error review. The
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court expressed a clear desire to impose a lesser sentence than the mandatory
Guidelines permitted, and, since Zavala’s initial sentencing, the Supreme Court has
said that such a consideration of the Guidelines as advisory is permissible. See
Shelton, 400 F.3d at 1333-34 (holding that, under similar circumstances, the
defendant had established plain error that affected the fairness, integrity, or public
reputation of the proceedings). Under these circumstances, Zavala has
demonstrated plain error by the district court and that the error seriously affected
the fairness, integrity, or public reputation of his judicial proceedings.
Accordingly, we vacate Zavala’s sentence and remand to the district court for
resentencing consistent with Booker.
VACATED AND REMANDED.
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